At docket 23, Defendant Alyeska Pipeline Service Company ("Alyeska") filed a motion for summary judgment. Plaintiff Robert Ditman ("Ditman") responded at docket 35. Alyeska's reply is at docket 36. Ditman was granted leave to file a rebuttal, which is at docket 38. Oral argument was not requested and would not assist the court.

II. BACKGROUND

Ditman was employed by Alyeska from January 28, 2002 until February 29, 2012. Ditman worked with Alyeska's communications team as a technician. At some point during Ditman's employment, around 2005 or 2006, Alyeska decided to combine its communication and instrumentation teams. Before the merger of the two teams, communication technicians and instrumentation technicians had different training requirements and performance checks needed for advancement up to a higher pay level, but once the teams were combined both the communications technicians and the instrumentation technicians would have to meet the progression requirements of the instrumentation team. Additionally, requirements for oversight and leadership experience were added to the progression requirements.[1]

At the time the teams were combined, Ditman was a level IV communications technician and had been since October 20, 2005.[2] He was told by supervisors that he could progress up one level under the existing communications progression requirements, but that he would have to meet the updated instrumentation requirements for any levels after that.[3] About January 22, 2007, Ditman met the necessary communications requirements to be promoted, and he was therefore advanced to a level V instrumentation technician.[4]

In 2008, Ditman approached his supervisors about moving up to a level VI instrumentation technician. The supervisors decided that since he had been a high level communications technician, he could complete a customized set of requirements and performance checks that would suffice to advance him another level. With Ditman's participation, one of the instrumentation supervisors prepared a memorandum setting forth the required performance checks and training requirements needed for Ditman to advance.[5] As part of these requirements, Ditman had to complete a lead technician assignment.[6] Ditman agreed to these requirements.[7]

Ditman started his lead technician assignment in June of 2009. Ditman was working in this capacity when an incident of insubordination occurred that led to Ditman's two-week suspension in August of 2009.[8] The suspension letter stated that he would not be eligible for progression to level VI for a period of one year.[9] In 2010, when Ditman was again eligible for progression, he had completed his lead technician assignment, but had not completed some of the other requirements that had been set forth in the agreed upon progression memorandum. When he was asked about completing the performance checks, Ditman indicated that they were not relevant to his advancement and that he should be promoted to the next level.[10] He was offered a chance to create a new list of performance checks to complete; ones that would be mutually acceptable to Ditman and his supervisors and managers, but he declined.[11] He was not allowed to progress. One of his co-workers, Sean Doherty, was allowed to progress to a level VI technician in 2007 after the merger of the communications team with the instrumentation team.[12] Based on these circumstances, Ditman filed a complaint with the EEOC in March of 2011 regarding his failure to be advanced to a level VI technician.

In May of 2010, Ditman had his annual medical examination. All Alyeska technicians are required to have such an examination in order to verify that the they can meet various regulatory obligations and be exposed to certain work-related hazards.[13] During Ditman's examination, it was noted that his pulmonary function was significantly reduced as compared to previous years. Alyeska had concerns about his ability to perform certain job tasks and requested more medical history from Ditman.[14] Ditman told Alyeska that he was being treated for a respiratory condition, and he also provided Alyeska with releases so they could review his medical records related to his pulmonary function. In June of 2010, Alyeska received a letter from Ditman's health care provider that indicated Ditman could wear a respirator in an emergency but that Ditman should avoid exposure to smoke, noxious fumes, irritants, and avoid using a protective mask.[15] Based on the letter, Alyeska restricted Ditman from working around any irritants and noxious fumes, which meant he was unable to take on overtime work with the mechanical maintenance department where he would come into contact with solvents and be exposed to fumes.[16] Alyeska's health and safety department cleared him to use a respirator, but noted that more information would be "needed to fully address accommodation questions."[17]

In August of 2010, Alyeska received a follow up letter from Ditman's health care provider stating that Ditman had been examined by a pulmonologist who concluded that Ditman was not at any greater risk from exposure to fumes, smoke, and other irritants and that he could wear a respirator.[18] A week later, Barb Smith, a nurse who provides medical case management services to Alyeska, sent a letter to the treating clinic to clarify Ditman's ability to wear a respirator under exertion.[19] The clinic responded to Smith's inquiry on September 10, 2010, indicating that Ditman could work without any restrictions whatsoever. Alyeska cleared Ditman from his medical restrictions on September 21, 2010.[20]

In May of 2011, Alyeska posted job positions for two mechanical maintenance technicians. The job posting indicated that Alyeska was looking for candidates with a minimum of five years of "direct technical work experience in mechanical maintenance in an industrial facility."[21] It also indicated that it would prefer candidates with welding competency, experience with machine shop equipment, certification from an accredited trade organization or school, and the ability to operate heavy equipment, among other things. Over one hundred people applied.[22] An initial three-member team was assembled to review the resumes of all candidates and to narrow down the candidates based on experience. The three team members reviewed the resumes independently before meeting to rank the candidates. Ditman did not make the first cut and was not hired for the positions.[23]

Around this time, during the summer and fall of 2011, Ditman began having problems with Alyeska. He received a verbal disciplinary warning on July 27, 2011, about staying past normal shift hours without approval, tardiness, and the wording and tone of his emails and communications to coworkers.[24] A month later, on August 31, 2011, he received a written warning for inappropriate emails. The written warning indicated that his emails were disrespectful and violated Alyeska's code of conduct regarding work relationships. The written warning stated that he had just recently received a verbal warning about his communications with other employees and that his failure to remedy his behavior could result in further disciplinary action, including termination. It noted that the warning would remain in his file for two years. Ditman refused to sign the written warning.[25]

Also around this time, one of Ditman's supervisors, Verne Griffis, became concerned that Ditman was under the influence of drugs or alcohol because of his appearance and attendance issues. He reported the concern to the maintenance manager, Mike Drew, who in turn had Griffis talk to Tom Brady, the Occupational Health Unit Manager. Griffis told Brady that he was not certain there was a problem but that he had concerns. Brady recommended that another employee who had drug and alcohol awareness training should observe Ditman. That employee reported that he did not observe any problem.[26]

In September of 2011, Griffis informed Stacia Motz in human resources about Ditman's attendance issues and asked her to review the gate logs to check when Ditman arrived at the work facility and when he left the work facility.[27] About two months later, Griffis also asked for the gate logs of two other employees with whom he had attendance issues.[28] The gate logs summaries for all three employees were provided on January 16, 2012.[29] Another one of Ditman's supervisor, Thomas Huhndorf, reviewed Ditman's gate log summary and determined that there was not a problem with Ditman's attendance that needed to be addressed. The other two employees were verbally counseled about their attendance.[30]

Ditman took medical leave in September of 2011 for shoulder surgery. When he returned in late January, his supervisor reported that Ditman was not speaking to him or speaking to him only briefly.[31] Additionally, on January 24, 2012, Ditman's supervisor received a call from Jessica Asire, the security badge coordinator. She told the supervisor that Ditman had come to her office to request a new badge and that Ditman was rude and disgruntled when she told him what he needed to do before receiving a new badge.[32]

On February 15, 2012, Smith, the nurse who provided case management services to Alyeska, received an email from Ditman. The email indicated that he had been distressed since his return to work after shoulder surgery and that he had been referred to a psychiatrist and planned to go to the Alaska Native Medical Center in the morning to see if he could get an appointment.[33] Smith emailed Ditman and stated that he should discuss his issues with Alyeska's behavioral health provider, his doctor, or human resources. She also noted that he should make sure to call in his absences as required and attached FMLA paperwork for him to bring to his doctor.[34] The next day, she forwarded the email to Brady and said that she needed to talk to him about Ditman's email.[35] She also called Ditman to follow up on the email. She took notes during their conversation.[36] Ditman clarified that his problems were not with his shoulder but with his mental state due to work harassment. He indicated that he doubted his way of thinking and that he did not deserve the way Alyeska was treating him. He assured her that he would not hurt himself. However, Smith states that he said he could not guarantee that he would not hurt other Alyeska employees and that he was in "survival mode."[37] Ditman denies that he ever made such a statement. Instead, he asserts that he simply did not answer her question about whether he would hurt someone else. He does not deny that he told her he did not trust himself.[38] Smith believed that Ditman presented a potential for workplace violence and reported the call to Alyeska administrators.[39]

On February 23, 2012, a human resources employee with Alyeska called Ditman and informed him that a disciplinary review board ("DRB") was being convened regarding his behavior. Specifically, he was told that the DRB was reviewing three incidents: 1) his discourteous conduct when requesting a new badge from the security coordinator in late January of 2012; 2) his insubordination to his supervisor in early February of 2012; and 3) his threats of workplace violence during his conversation with Smith on February 21, 2012. She urged him to prepare and send his position statement regarding those three issues.[40]

The DRB met on February 28, 2012. At the time the DRB met, the board members were aware that Ditman had previously filed an EEOC complaint against Alyeska in March of 2011. The board determined that termination was appropriate and prepared a report. Termination was based on Ditman's actions of threatened workplace violence, insubordination, and continued violation of Alyeska's Code of Conduct regarding employee interactions.[41] Ditman received his termination notice on February 29, 2012. The notice reminded Ditman that he could file an appeal through human resources.[42] He did not file any appeal, but rather pursued this action in state court.

He amended his complaint in state court to include allegations regarding his termination.[43] His First Amended Complaint asserts the following claims:

1) Alyeska discriminated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964 and the Alaska Human Rights Act when it failed to promote him, investigated him for alcohol use and attendance problems, and terminated him.

2) Alyeska discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA") and the Alaska Human Rights Act when it failed to promote him, investigated him for ...

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